IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35221 of 2009(W)
1. ABDUL KADER,S/O.MR.P.MOIDUTTY,
... Petitioner
Vs
1. STATE OF KERALA,REP;BY SECRETARY TO
... Respondent
2. EPRINTHALMANNA MUNICIPALITY REP:BY IT'S
3. DISTRICT COLLECTOR,CIVIL STATION,
4. REVENUE DIVISIONAL OFFICER,R.D.O.OFFICE,
5. TAHSILDAR,TALUK OFFICE,PERINTHALMANNA,
6. ASST:EXECUTIVE ENGINEER,(THE PROJECT
7. MOHAMMED MUSTHAFA,S/O.MOHAMMED MUSALIYAR
8. MOHAMMED RAFEEQUE,S/O.MR.SAIDALAVI,
For Petitioner :SRI.C.A.MAJEED
For Respondent :SRI.M.P.ASHOK KUMAR
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :03/03/2010
O R D E R
ANTONY DOMINIC, J.
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W.P.(C.) No.35221 of 2009 (W)
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Dated, this the 3rd day of March, 2010
J U D G M E N T
The 7th respondent owns 2.9 cents of land in Survey No.60/7
of Perinthalmanna Vilalge. For constructing a building with ground
and first floors, the 7th respondent made an application to the
respondent Municipality for a building permit. Ext.R2(c) & (d) are
the sketch and site plan of the plot in question. The Municipality
conducted enquiries and issued Ext.R7(a) building permit. On that
basis, he started constructions.
2. According to the petitioner, the construction is in
violation of Rules 33 & 34 of the Kerala Municipality Building Rules.
Although, the petitioner’s allegation is that the 7th respondent has
trespassed into puramboke land abutting the National Highway,
according to the petitioner, the National Highway Authorities
themselves have taken action in the matter, and therefore, this issue
is not addressed before this Court.
3. In so far as the allegation that the construction
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undertaken by the 7th respondent and the building permit issued to
the 7th respondent are in violation of Rules 33 & 34 of the Kerala
Municipality Building Rules is concerned, as already stated, the
extent of the plot in question is only 2.9 cents. This is a small plot
as contemplated in Chapter VIII of the Municipality Building Rules,
which makes special provisions for constructions in such small
plots. Faced with this situation, the learned counsel for the
petitioner contends that there is violation of Rules 62 (3) and 63 of
the Rules. However, it is noticed that this allegation of violation of
these Rules is not raised either in the writ petition or before the
Municipality, and therefore, even the Municipality did not have an
occasion to deal with such allegations. In such a situation, and in
the absence of pleadings supporting this contention, this Court will
not be justified in directing the Municipality to cancel the permit as
sought for in the writ petition.
Therefore, the writ petition is disposed of leaving it open to
the petitioner to take up with the Municipality his complaint that the
7th respondent has undertaken construction in violation of the
provisions contained in Chapter VIII of the Municipality Building
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Rules, in which event the Municipality will take appropriate action in
the matter.
This writ petition is disposed of as above.
(ANTONY DOMINIC, JUDGE)
jg